PEOPLE OF MI V CLAY DONALD HAYWARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 16, 1996
Plaintiff-Appellee,
v
No. 164251
LC No. 91-1264-C
CLAY DONALD HAYWARD,
Defendant-Appellant.
Before: Markey, P.J., and Holbrook, Jr., and M.J. Matuzak,* JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549,
and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He
was sentenced to serve a mandatory two-year term for the felony-firearm conviction followed by a term
of nonmandatory life imprisonment for the murder conviction. He appeals as of right, and we affirm.
On the evening of January 24, 1992, defendant had several visitors at his home. At about 8:00
p.m., defendant’s former girlfriend, Deborah Grego, came to the house and told defendant she might be
pregnant with his child. He was happy to hear this news, until he received a telephone call a few hours
later from someone who indicated that Grego might have been going out with other men. Defendant
became enraged, hitting and kicking the wall. Grego telephoned defendant and he began yelling at her.
He told her he was going to beat her until she was black and blue.
At the time of the telephone call, Grego was at Stacy Zrakovi’s house with Chris Cramer and
Mark Schafer. While on the telephone, defendant told Grego to tell Schafer that if Schafer came over,
he was going to blow him away, or to tell Schafer to come over, so he could blow him away. There had
been ill feelings between defendant and Schafer in the past. Defendant had been told on different
occasions that Schafer said he was going to bury defendant when he got out of the Army, or put him six
feet under. Defendant had also been told that Schafer had “head-butted” Pete Avery in a fight,
* Circuit judge, sitting on the Court of Appeals by assignment.
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shattering Avery’s nose. Schafer was about 6’2” tall and weighed about 220 pounds, whereas
defendant was about 5’9” tall and weighed about 150 pounds.
Grego and Zrakovi drove to defendant’s house; Cramer and Schafer followed behind in a
different car. Grego began arguing with defendant when she arrived at his house. A brief shoving match
ensued in which Zrakovi hurt her elbow. Schafer and Cramer arrived and walked into defendant’s
house without permission. Defendant immediately began yelling repeatedly for Schafer to leave his
house. Schafer asked defendant why he had to be such a tough guy and why did he have to beat up
girls. Grego tried unsuccessfully to get Schafer to leave, but he pushed her to the side and continued to
argue with defendant. Defendant told Schafer he had three seconds to leave and started counting.
When defendant reached three he pulled out a handgun and shot Schafer several times until the gun was
empty, threw the gun, and kicked Schafer.
Defendant was tried on a charge of first-degree premeditated murder. Defense counsel
requested, and was granted, an instruction on voluntary manslaughter. The jury convicted defendant of
second-degree murder and felony-firearm.
Defendant’s most persuasive argument on appeal is that he was denied a fair trial by the
improper admission of (1) evidence tending to establish defendant’s general reputation for fighting, (2)
evidence of defendant assaulting Deborah Grego in the past, and (3) rebuttal evidence regarding
defendant’s knowledge of the victim’s involvement in a specific instance of violence that was factually
similar to the present matter (i.e., whether the victim was the aggressor in the incident). We agree that
the trial court abused its discretion in admitting this evidence. First, defendant’s reputation for
nonviolence was not injected into the case by defendant, therefore, evidence presented during the
prosecutor’s case-in-chief regarding defendant’s reputation as a fighter was inadmissible. See MRE
404(a)(1), 405(a). Second, evidence of defendant’s threats and assaults on Grego that were remote in
time and unconnected with the charged offense was inadmissible character evidence. See MRE 404(b).
And, third, the prosecutor’s rebuttal evidence was irrelevant given that the victim’s state of mind was
not a material issue in this case. See MRE 404(a)(2), 405(b). See also People v White, 401 Mich
482, 504; 257 NW2d 912 (1977). Nonetheless, the improper admission of evidence does not
constitute error warranting reversal where one cannot conclude beyond a reasonable doubt that it
tipped the scale in favor of the prosecution and contributed to the jury’s verdict. People v Anderson,
446 Mich 392, 407; 521 NW2d 538 (1994). Here, we conclude that the error was harmless because
the trial court also erred in instructing the jury on the lesser-included offense of voluntary manslaughter
when there was insufficient evidence, as a matter of law, of provocation. Therefore, we find any
evidentiary error during trial to be harmless beyond a reasonable doubt because defendant was
convicted of second-degree murder, the only lesser-included offense that was properly placed before
the jury, and his guilt of that charge was overwhelming. See, e.g., People v Williamson, 205 Mich
App 592, 596; 517 NW2d 846 (1994).
Murder and manslaughter are both intentional killings, but manslaughter is distinguished by the
element of provocation. Voluntary manslaughter requires proof beyond a reasonable doubt that (1) the
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defendant killed in the heat of passion, (2) the passion was caused by an adequate provocation, and (3)
no lapse of time occurred during which a reasonable person could have controlled his passions. People
v Pouncey, 437 Mich 382, 388; 471 NW2d 346 (1991). Adequate provocation is that which would
cause a reasonable person to lose control. Although the determination whether adequate provocation
existed is generally a question for the trier of fact, the trial court may exclude evidence of provocation,
as a matter of law, where no reasonable jury could find that the provocation was adequate. Id. at 390.
On appeal, defendant challenges the trial court’s ruling that precluded him from arguing to the
jury that his provocation was in part the result of his anger toward Grego and the news that he was not
going to be a father. As noted above in finding that defendant was not prejudiced by the trial court’s
evidentiary errors, we find no merit to this argument because defendant’s emotional state regarding
Grego and his fear of or anger toward Schafer did not constitute adequate provocation, as a matter of
law, to reduce murder to manslaughter. Although Schafer entered defendant’s home without permission,
he was unarmed and did not physically threaten or attack defendant. Schafer merely exacerbated
defendant’s anger toward Grego by asking defendant why he had to beat up on girls. Mere words or
gestures, however, rarely rise to the level of adequate provocation for homicide. Id. at 391. Our
Supreme Court accurately summarized the controlling principle in this case when it stated in Pouncey, at
389: “The law cannot countenance the loss of self-control; rather, it must encourage people to control
their passions.”
Instead, facts such as these—e.g., prior verbal threats by the decedent to harm defendant,
decedent’s entry into defendant’s home without permission, decedent’s refusal to leave when repeatedly
told to, decedent and defendant’s substantial size difference, and defendant’s knowledge of specific
instances of violence by decedent—might have warranted an instruction on self-defense or imperfect
self-defense.1 See People v Robinson, 79 Mich App 159-160; 261 N.W.2d 544 (1977). In
Michigan, a person whose home is forcibly entered by another or who is assaulted in his or her home
need not retreat and may resist the intrusion with as much force as he or she honestly and reasonably
believes necessary, including deadly force. See CJI2d 7.15; 7.17. Where a defendant was the initial
aggressor or reacted with excessive force, the qualified defense of imperfect self-defense may be
asserted to mitigate second-degree murder to voluntary manslaughter. People v Kemp, 202 Mich App
318, 323; 508 NW2d 184 (1993).
Here, defendant argues on appeal that the trial court had a duty to instruct the jury sua sponte
on self-defense and imperfect self-defense. However, at trial, defense counsel specifically stated on the
record that he was not seeking a self-defense instruction, and hinged defendant’s defense on reducing
murder to voluntary manslaughter by arguing adequate provocation. A defendant may not assign error
on appeal to something which his own counsel deemed proper at trial. Thus, absent a miscarriage of
justice, we will not allow defendant to harbor error as an appellate parachute. See People v Shuler,
188 Mich App 548, 552; 470 NW2d 492 (1991). Cf. People v Curry, 175 Mich App 33, 41; 437
NW2d 310 (1989). We find no miscarriage of justice in this case because the jury convicted defendant
of the lesser-included offense of second-degree murder.2
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Defendant next argues that the prosecutor improperly commented on defendant’s right to
remain silent when she argued to the jury during her closing argument that the main facts were not in
dispute.. We disagree. While a prosecutor may not comment on a defendant’s failure to take the
stand, it is permissible to argue that the evidence is uncontradicted or undisputed. See People v
Guenther, 188 Mich App 174, 177; 469 NW2d 59 (1991).
Defendant next argues that the trial court abused its discretion in limiting the testimony of his
expert witness. We disagree. The court properly allowed the witness to testify regarding issues that
were beyond the jury’s understanding, but disallowed proposed testimony that was not unique or
beyond the average juror’s ability to evaluate. See People v Beckley, 434 Mich 691; 456 NW2d 391
(1990). The jury in this case did not need expert testimony to tell it that defendant’s reaction to the
events of that day was normal. Id. at 715.
In sum, having reviewed the record in this matter, we affirm defendant’s conviction of second
degree murder.
Defendant next argues that he is entitled to resentencing because of certain irregularities in the
imposition of his life sentence for the murder conviction. We find no error, and affirm defendant’s life
sentence.
Defendant contends that the presiding trial judge improperly disqualified himself from sentencing
defendant. At sentencing, the substituted judge asked defense counsel if he had any objection to the
presiding judge’s disqualification, and counsel specifically stated that he and his client wanted to
proceed with sentencing without placing an objection on the record. Thus, this issue has not been
preserved for appellate review.
Before addressing defendant’s remaining sentencing issues, a review of what occurred at
sentencing is in order. At sentencing, the prosecutor argued that the court should deviate from the
recommended minimum sentence under the guidelines of eight to twenty-five years a impose a
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minimum prison sentence of forty years. Defense counsel argued mitigating factors and asked for a
sentence within the guidelines. In reviewing the guidelines, the court noted that they did not consider the
fact that the victim was a substantially larger person than defendant or that the altercation occurred in
defendant’s home. On the other hand, the court also noted that the guidelines did not consider (1) the
fact that defendant chose to arm himself with a deadly weapon and chose to use deadly force against an
unarmed victim, (2) there was no physical contact or altercation between defendant and the victim or
physical threat by the victim prior to the firing of the gun by defendant, (3) the fact that, after defendant
fired one shot which caused the victim to fall to the floor, defendant continued to shoot until the gun was
empty, insuring that death would result, and (4) after the victim was presumably dead, defendant kicked
the victim with the “intent to further degrade” him. The sentencing judge stated that it was appropriate
to depart from the guidelines, adding that he believed the guideline committee was wrong in considering
a life sentence to be necessarily greater than a sentence of twenty-five years. The judge noted that a
person sentenced to serve life imprisonment becomes eligible for parole after ten years, although as a
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general rule a much longer period of time is required to be served before parole can be considered.
The judge then imposed a life sentence on defendant, finding it to be appropriate based on his review of
the presentence report, the guidelines, the concept of proportionality, and “particularly with regard to
the lifer statute concerning parole.” The judge further stated that if he were to impose an indeterminate
sentence, he would exceed the maximum minimum guidelines recommendation of twenty-five years.
Defendant argues on appeal that the sentencing judge’s decision was based on the mistaken
belief that defendant would be eligible for parole after ten years, when in fact he would not be eligible
for fifteen years. Defendant is the one who is mistaken. A defendant convicted of an offense committed
before October 1, 1992, is eligible for parole after ten years, while an offense committed after that date
is not eligible for parole until fifteen years have elapsed. MCL 791.234(6); MSA 28.2304(6). Here,
defendant’s offense was committed on January 25, 1992, therefore, he will be eligible for parole after
serving ten years.
Defendant also argues that the sentencing court imposed a life sentence under the mistaken
belief that defendant would be eligible for parole sooner with a life sentence than a long term of years.
We believe defendant has misconstrued the sentencing court’s comments. The court’s articulation of its
reasons for imposing a life sentence were thorough and accurate, as the law currently stands, and it
clearly was not the court’s intent to subvert the purposes of the “lifer” statute. See People v Lino
(After Remand), 213 Mich App 89; 539 NW2d 545 (1995).3 Contrary to defendant’s argument, the
sentencing judge’s assessment of the facts was not erroneous. The court accurately noted that there
was no evidence that the victim physically confronted or threatened defendant immediately before the
shooting, and that defendant kicked the victim in the foot after the shooting. Given the sentencing
court’s reasons for deviating from the guidelines, we are unable to say that a life sentence was
disproportionally harsh. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Affirmed.
/s/ Jane E. Markey
/s/Donald E. Holbrook, Jr.
/s/ Michael J. Matuzak
1
We express no opinion regarding the merits of such a defense in this case, or defendant’s possible
tactical reasons for not raising the defense at trial. Our intent is merely to note the important distinction
between the defenses of adequate provocation and self-defense.
2
The prosecutor’s Memorandum of Law, filed December 10, 1992, which objected to the trial court’s
proposed manslaughter instruction, succinctly and accurately analyzed the legal and factual aspects of
this issue.
3
This Court has recently ordered that a special panel by convened to resolve the conflict between Lino
and People v Carson, ___ Mich App ___ (No. 159501, issued 06/04/96).
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